The Government of BC recently introduced Bill 41, the Workers Compensation Amendment Act (No. 2), 2022 (Bill 41), proposing a number of significant changes to the BC Workers Compensation Act (the WCA), with the stated goal of restoring fairness and bringing a more “worker-centric” approach to BC’s workers’ compensation system.[1]

While many of the proposed changes build upon recent amendments to the WCA as part of ongoing efforts to bring BC’s workers’ compensation system in line with other Canadian jurisdictions, some of the changes are completely new and, if enacted, will have a significant impact on the rights and duties of employers in BC.

Most notably, the proposed amendments will establish a new legal duty requiring employers to re-employ injured workers and make any necessary changes to the work or workplace to accommodate their successful return to work, up to the point of undue hardship. In particular, employers and workers will be required to work together, as well as with the Workers’ Compensation Board (the Board), to facilitate the worker’s return to their pre-injury work if possible or to other suitable work if not.

On the requirement to work together, the proposed amendments will create a new reciprocal legal duty to cooperate, such that both the employer and the injured worker will be required to:

  • Establish and maintain communication following the injury;
  • Identify suitable work that restores the worker’s pre-injury earnings upon their return to work; and
  • Keep the Board informed of the worker’s return to work or continuation of work.

In addition, either party will be able to report the other to the Board for any perceived failures to meet the duty to cooperate, and the Board will investigate and remedy any such failures. For example, if a worker fails to meet the duty to cooperate by refusing to communicate with the employer following the injury, the Board will be able to reduce or suspend any compensation payments to the worker until the worker remedies such failure.

The proposed amendments also include a built-in mechanism to ensure that employers comply with the duty to re-employ. If an employer terminates a worker within six months of their return to work, the employer will be deemed to have failed to comply with its legal duty to return the injured worker to work unless the employer can prove that the termination was unrelated to the worker’s injury. If the employer fails to prove that the termination was unrelated to the worker’s injury, or if the employer is otherwise found to have breached the duty to re-employ, the Board may compensate the worker by paying them an amount equivalent to the compensation that the worker was entitled to pursuant to the temporary total or partial disability provisions of the WCA. In addition, the Board can impose an administrative penalty on the employer in an amount not exceeding the Board’s maximum wage rate for the applicable year.

In addition to establishing new legal duties to re-employ and cooperate, Bill 41’s proposed amendments include:

  • Establishing an independent Fair Practices Commissioner that will report directly to the Board of Directors of WorkSafeBC;
  • Expanding workers’ access to independent health professionals by allowing them to be requested as part of an appeal to the Workers’ Compensation Appeal Tribunal (WCAT);
  • Requiring interest to be paid on compensation benefits that are determined by the Review Division of WorkSafeBC or WCAT to be owing to a person for 180 or more days;
  • Adding explicit provisions against employers dissuading workers from filing claims, with enforcement through penalties under the WCA;
  • Indexing workers’ compensation benefits to the full rate of annual percentage changes in the Canadian Consumer Price Index; and
  • Increasing the maximum compensation for non-traumatic hearing loss, which is currently capped at 15% of a total disability when there is no loss of earnings.

Bill 41 is currently at second reading before the Legislative Assembly of BC. Dentons will continue to monitor the progress of Bill 41 and provide updated information to help employers prepare for the potential changes. If you have any questions with respect to the proposed amendments, please contact the author Tomasz Cerazy or any member of our Employment and Labour Group.